TMI Blog2012 (2) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... r HUFs of the Konde family group of which the assessee is a part and concluded for the detailed reasons enumerated in the order, that capital gains arising on the sale of 165 guntas of land was clearly taxable in the hands of the four HUFs. The assessee HUF is one such taxable entity. The Assessing Officer observed that the land sold was located within a distance of eight kilometres from the limits of the Hyderabad Municipal Corporation and, therefore, was a capital asset within the meaning of section 21(4) of the IT Act. As the transaction of sale of such land attracted capital gains and as no return of income had been filed by the family members of the group, notices u/s 148 of the Act were issued. 3. The assessee filed a Nil return on 22.12.2009 in HUF capacity and additionally a return disclosing total income of ₹ 6,68,750/- in the individual capacity on 31.3.2009 in respect of the same transaction. While tax liability was denied in HUF status, in the individual return income declared in respect of the sale transaction was shown after claiming statutory deductions. 4. The Assessing Officer determined the assessee s share in the total land sold at 47 Guntas in four d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial proposition laid down by the Tribunal, Hyderabad and the jurisdictional Tribunal, it is held that the agricultural land claimed to ahve been sold by the assessee does not constitute a capital asset within the meaning of the provisions of section 2(14) of the Act. Consequently, sale of such land does not give rise to any levy of tax u/s 45 of the Act. In the light of the above finding that the land sold by the assessee does not give rise to any taxable capital gains, the grounds relating to the status in which the gains should be assessed or the extent of land sold by the assessee and the consequential grounds relating to exemptions u/s 54B 54F of the Act are rendered redundant and being academic in nature, no adjudication of the rest of the grounds of appeal are warranted. The addition made in the assessment order towards long term capital gains is therefore, deleted . 7. Aggrieved, the Department is in appeal before us and raised the following grounds: 1. The CIT(A) erred in law and facts in accepting the appeal of the assessee and granting relief to the assessee. 2. The CIT(A) erred in holding that the land or the capital asset in question transferred by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of hearing to the grounds raised by the Revenue. Similar issue came up for consideration before this Tribunal in ITA Nos.1024 to 1027/Hyd/2011 4 others in the case of Gousia Begum, Hyderabad Others. The Tribunal vide its order dated 16th January, 2012 has held as follows: 5. We have considered the rival submissions. We do not find merit in the contention of the assessee. The land in question giving rise to capital gain was, in fact, urban land though agricultural operations have been carried out on them. The assessee placed before the lower authorities pahani patrika, Certificate and details of electricity Bill/slab pass Book etc. We have held on that basis in earlier paras that the assessee derived agricultural income. But, the question still remains whether the impugned land come within the meaning of capital asset . The land is situated at Narsing Village of Rajendra Nagar Mandal, R.R. District which is within the municipal limits of Rajendra Nagar. According to the learned counsel for the assessee, Rajendra Municipality is not notified by the Central government and therefore the agricultural lands which fall under the jurisdiction of the Rajendra Nagar Mandal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere payment of advance does not entitle the assessee for relief under S.54B of the Act, if ultimately whole transaction of purchase of land was completed within a period of two years as contemplated under S.54B of the Act, assessee is entitled for relief under S.54B of the Act. In this view of the matter, we set aside the orders of the lower authorities, and restore this issue to the file of the assessing officer for verifying whether the assessee has purchased the agricultural lands within a period of two years, so as to qualify for relief under S.54B of the Act, and accordingly re-decide this issue in accordance with law and after giving reasonable opportunity of hearing to the assessee. Grounds of the assessee on this issue are allowed for statistical purpose. 10. In view of the above findings of the Tribunal, we are inclined to allow the ground raised by the Revenue by holding that the land which is transferred is a capital asset liable for capital gain. 10.1. In view of the above findings of the Tribunal on the issue relating to the treatment of the land transfer, we are of the opinion that the land transferred by the assessee is a capital asset, liable for capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, within the subject matter of appeal, the Tribunal can examine any aspect of the matter whether the same has been examined by the authorities below or not. It is, thus, not only invitation of the parties but also on its own that the Tribunal can address itself to an aspect related to the issue in appeal, even though the same may not have been specifically raised by either of the parties. 13. In the present case, while the departmental appeal was being heard by the Bench, the learned counsel Shri A.V. Raghuram has objected to the CIT(A) not considering the all the grounds raised before him and pointed out that the decision has been given only in respect of the additional ground. The counsel has not filed cross objections against the order of the CIT(A) but has merely raised n issue that the CIT(A) has omitted to adjudicate on certain grounds, in the course of hearing of the departmental appeal. Applying the principle laid down by CIT Vs Assam Shipping Travels (198 ITR 1) and Linklaters LLP Vs. ITO International Taxation, Ward 1(1)(2), Mumbai, we are of the opinion that the Tribunal can decide the issue and therefore, we remit the issue back to the file of the CIT(A) to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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